What are your thoughts on the originalism versus living constitutionalism debate?

Apr 2018
979
Upland, Sweden
This is a very interesting jurisprudential problem, and if I had been American I'd definitely be an originalist. I've seen a few YouTube interviews with Antonin Scalia when he was still alive, and he made a very convincing logical case: the very existence of a constitution implies that you put some kind of boundary on government. That is its point, and only possible raison d'être.

If you're not going to have a consistent interpretation of what the same text means, then you are essentially changing the text without doing so explicitly. Sure, there will be problems of interpretation when adapting the text to new circumstances, but if you don't think the text has some kind of original meaning that deserves to be taken seriously then you are essentially just making things up.

Now I'm in theory fine with the government not having a written constitution, but then you should do it like the British, or the Swiss, or mot European countries do and make it easier to change the constitution, as well as don't have such a powerful constitutional court. The very structure of the American political system necessitates a more conservative, originalist interpretation of the law (i.e. it necessitates that there is such a thing as The Law which is relatively constant across time. If there is not such a thing your entire political machine ceases to make sense.

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To contrast with Sweden - we have changed our constitution something like 13 times since we got it in the 1970s. Our previous one was from 1809, and was practically ineffectual and only worked because of precedent (which I would have been fine with to be honest). Anyway, our heavily pragmatic and heavily positivist legal tradition emphasizes that it is up to the legislator to decide the purpose of legislation, and that a large part of what the judicial arm is there for is essentially just to interpret the purpose of law, and put it in line with "the purpose" of the legislator. This might sound fine, and completely reconcilable with an originalist position, except it isn't. Swedish lawyers constantly look at parliamentary drafts for example and use that as a basis for interpreting legislation. Personally I think this is absurd, as it puts judges in a position where they have to guess what the "purpose" of a law was (how the hell should they know? Why does a law have purpose? if it has a purpose why isn't it in states explicitly in the law itself? Maybe the politicians who drafted it were only motivated by party-political reasons?) and undermines the rule of law.

Also, there is - traditionally, that means since the 1930s - a complete contempt for any idea of natural rights, and if you would have asked any Swedish lawyer until a decade ago if they believed in such things they would have laughed in your face and told you that "Governments make laws according to expedience". Interestingly enough, these same legal positivists have given birth to a new generation of "Human Rights" inspired lawyers, who love invoking various European or supra-national legislative acts as it suits them...
 
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May 2019
210
Salt Lake City, Utah
Do not let revisionists argue about the doctrine of judicial review.

The DJR is good, constitutional, ethical, and makes partisan points clear and explicit when necessary, and to avoid potential conflicts.
 

Futurist

Ad Honoris
May 2014
22,461
SoCal
The problem with this is that, after extensive arguments and disagreements over every little point, our founders agreed only on the words which would be printed. They still had strong disagreements about what the sentences and clauses actually meant. You can discern a neutral semantic meaning only by examining contemporary dictionaries and grammars. Of course, many hate this approach because it results in clashes with popular interpretations of partisan sacred cows within the text. For instance, contemporary grammars clearly demonstrate the grammar and syntax of the 2nd Amendment require that the right to bear arms is conditioned upon the perceived need for service in the militia and many people who champion gun rights refuse to accept that. The Federalist Papers are highly regarded as guides to our understanding but, in actuality, they're mere newspaper editorials representing the personal opinions of only a couple of people rather than the consensus of the Convention. It seems to me there is no discernible real or precise original intent on any point of minutiae because the founders consciously and knowingly failed to provide us with a consensus about what they intended all the details to mean. Collectively, when delivering the document to Congress, the founders merely attested they agreed to the particular words which were used. They acknowledged that significant disagreements about the complete meaning still existed but, nevertheless, they implored the states to accept it because they didn't think anyone could do any better. As a result, the ink barely had time to dry before political factions emerged and began our long tradition of fighting over its meaning. There are some broad concepts we can find consensus on. For instance, the Convention unanimously endorsed the proposition that state sovereignty was significantly curtailed and federal powers over the states were significantly expanded under the document. However, they failed to clearly delineate the complete limits of that proposition. The later attempt to fix this with the 10th Amendment also failed to do this as it's likewise imprecise. Thus, we've had arguments over states' rights ever since. Despite their claims of applying any number of theories of Constitutional interpretation, Supreme Court justices are usually only applying the personal opinions they like best when they rule on a particular matter. While we may not like to think of it that way, in my opinion, that's just the way it is and, perhaps, we just have to do the best we can to live and work with it because, like our founders, I'm not sure we could do any better today either.
If we're using personal opinions, though, then why not take it all the way? For instance, using the 5th Amendment to implicitly repeal the natural-born citizen requirement for the US Presidency and implicitly make the apportion of electoral votes based exclusively on population as well as using the 26th Amendment to implicitly lower the age requirements for all US state and US federal political offices to 18 years.
 
Jul 2017
292
Srpska
The problem with this is that, after extensive arguments and disagreements over every little point, our founders agreed only on the words which would be printed. .
It clearly and explicitly says: "The right of the people to keep and bear arms shall not be infringed." This clearly says that the right SHALL NOT be infringed on people -- not states, not militia, but people. You cannot read that as maybe it can be, it can be to a certain extent, or it shall be infriged. It clearly and explicitly says, The Right, Of People, Shall Not be Infringed. End of story. Every other interpretation is fraud, intentional twisting of the words of the constitution, an unethical act, a crime.

Federal Government cannot pass any law that infringes in any way any person's right to bear arms.

Federal government cannot even define what constitutes "arms." It is 100% a State issue. States can legislate. It is clear and explicit.

To what extent can states legislate? States can legislate up to what constitutes a militia. States have 100% power to define militia, to organize militia, to define what constitutes arms for the purposes of militia.

States do not have the power to define militia outside of it's meaning, which is civilian population in service of the state. In other words, State cannot say militia is police, because that would be fraud, because police is not civilian population, it is not militia.

So, to summarize, only States can promulgate laws regulating how civilians obtain arms, and what arms means. But, they cannot completely take that right away, because it is clearly and explicitly "necessary." A State cannot say it is not necessary, because that would be a fraud. It indeed is necessary, it says so in the Bill of Rights.

That is clear and explicit. Federal government cannot in any way infringe the right of civilians to bear arms, and States can regulate it up to certain extent.
 
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Futurist

Ad Honoris
May 2014
22,461
SoCal
This is a very interesting jurisprudential problem, and if I had been American I'd definitely be an originalist. I've seen a few YouTube interviews with Antonin Scalia when he was still alive, and he made a very convincing logical case: the very existence of a constitution implies that you put some kind of boundary on government. That is its point, and only possible raison d'être.
Yep. After all, why bother having a written constitution at all if one wants to give judges discretion to do whatever they want?

If you're not going to have a consistent interpretation of what the same text means, then you are essentially changing the text without doing so explicitly. Sure, there will be problems of interpretation when adapting the text to new circumstances, but if you don't think the text has some kind of original meaning that deserves to be taken seriously then you are essentially just making things up.
That I agree with. Of course, the problem with the "original meaning" approach is that it could occasionally result in consequences that are not intended by the draftsmen of a provision. For instance, the 26th Amendment to the US Constitution says this:

"Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."

While the draftsmen of the 26th Amendment certainly didn't intend to lower the age requirements for all US state and US federal offices to 18 years, one could nevertheless reach this conclusion due to the fact that the term "right ... to vote" in this Amendment is not limited to the right to vote in elections (the text could have stated "right to vote in elections", but didn't). After all, legislators, the US Vice President (in order to break ties in the US Senate), and jurors all likewise vote as a part of their jobs/duty. Thus, under an "original meaning" approach, the 26th Amendment could be extended to this even if its draftsmen didn't actually intend to do this.

Also, here's a more blatant example: One could claim to be an originalist and then read the principles of the 14th Amendment to the US Constitution at such a high level of generality that they could produce any or almost any result that one would want. For instance, one could read the principles of the 14th Amendment as forbidding second-class citizenship and then use it to strike down any discriminatory laws that one pleases due to this general principle--even if the draftsmen of the 14th Amendment would not have actually intended to strike down these laws. For instance, there have actually been "originalist" arguments in favor of creating a constitutional right to abortion and same-sex marriage even though the draftsmen of the 14th Amendment (passed in 1866 and ratified in 1866-1868) certainly didn't intend to have either of these things become constitutional rights.

This is why I prefer the "original intent" approach.

Now I'm in theory fine with the government not having a written constitution, but then you should do it like the British, or the Swiss, or mot European countries do and make it easier to change the constitution, as well as don't have such a powerful constitutional court.
The US Constitution is pretty easy to informally amend through the courts, though; it's the formal amendment process that is difficult.

I would presume that, with an unwritten constitution, it would likewise be extremely easy for the courts to amend it.

The very structure of the American political system necessitates a more conservative, originalist interpretation of the law (i.e. it necessitates that there is such a thing as The Law which is relatively constant across time. If there is not such a thing your entire political machine ceases to make sense.
Oh, certainly.

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To contrast with Sweden - we have changed our constitution something like 13 times since we got it in the 1970s. Our previous one was from 1809, and was practically ineffectual and only worked because of precedent (which I would have been fine with to be honest). Anyway, our heavily pragmatic and heavily positivist legal tradition emphasizes that it is up to the legislator to decide the purpose of legislation, and that a large part of what the judicial arm is there for is essentially just to interpret the purpose of law, and put it in line with "the purpose" of the legislator. This might sound fine, and completely reconcilable with an originalist position, except it isn't. Swedish lawyers constantly look at parliamentary drafts for example and use that as a basis for interpreting legislation. Personally I think this is absurd, as it puts judges in a position where they have to guess what the "purpose" of a law was (how the hell should they know? Why does a law have purpose? if it has a purpose why isn't it in states explicitly in the law itself? Maybe the politicians who drafted it were only motivated by party-political reasons?) and undermines the rule of law.
I think that, by "purpose," the question is what the legislators intended to accomplish by passing a specific law, no?

Also, there is - traditionally, that means since the 1930s - a complete contempt for any idea of natural rights, and if you would have asked any Swedish lawyer until a decade ago if they believed in such things they would have laughed in your face and told you that "Governments make laws according to expedience". Interestingly enough, these same legal positivists have given birth to a new generation of "Human Rights" inspired lawyers, who love invoking various European or supra-national legislative acts as it suits them...
Why'd they change their minds in regards to this?
 
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Apr 2018
979
Upland, Sweden
Yep. After all, why bother having a written constitution at all if one wants to give judges discretion to do whatever they want?
Yeah.


That I agree with. Of course, the problem with the "original meaning" approach is that it could occasionally result in consequences that are not intended by the draftsmen of a provision. For instance, the 26th Amendment to the US Constitution says this:

"Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."

While the draftsmen of the 26th Amendment certainly didn't intend to lower the age requirements for all US state and US federal offices to 18 years, one could nevertheless reach this conclusion due to the fact that the term "right ... to vote" in this Amendment is not limited to the right to vote in elections (the text could have stated "right to vote in elections", but didn't). After all, legislators, the US Vice President (in order to break ties in the US Senate), and jurors all likewise vote as a part of their jobs/duty. Thus, under an "original meaning" approach, the 26th Amendment could be extended to this even if its draftsmen didn't actually intend to do this.

Also, here's a more blatant example: One could claim to be an originalist and then read the principles of the 14th Amendment to the US Constitution at such a high level of generality that they could produce any or almost any result that one would want. For instance, one could read the principles of the 14th Amendment as forbidding second-class citizenship and then use it to strike down any discriminatory laws that one pleases due to this general principle--even if the draftsmen of the 14th Amendment would not have actually intended to strike down these laws. For instance, there have actually been "originalist" arguments in favor of creating a constitutional right to abortion and same-sex marriage even though the draftsmen of the 14th Amendment (passed in 1866 and ratified in 1866-1868) certainly didn't intend to have either of these things become constitutional rights.

This is why I prefer the "original intent" approach.
Right. Good points. It is one thing to talk about "intent" with your constitution though: it is the product of a very particular historical experience. There I think you can actually use that word, without corrupting the rule of law...


The US Constitution is pretty easy to informally amend through the courts, though; it's the formal amendment process that is difficult.

I would presume that, with an unwritten constitution, it would likewise be extremely easy for the courts to amend it.
Yeah. What do you think of that? Do you think that it should be easier to amend? As of now you require something like an 80% supermajority in both houses, right?


I think that, by "purpose," the question is what the legislators intended to accomplish by passing a specific law, no?
Yes. You could use the words "legislative intent", I think that is the formal term. Still, my questions: what makes you think the legislator had any intent that is not apparent in the law itself? I think the judges should just go by the legal text and precedent, and ignore various drafts, or "doctrine" or whatever. The law is the law is the law. In my view the judicial branch should not sit around and play God, their job is to apply any and all laws equally and make the legal system function. If there are laws in contradiction with each other that is a problem, and when you start looking at parliamentary drafts like we do you just give lawyers and and judges an excuse to come up with lots of silly little abstractions, that in the end only take the understanding of law further away from the average man while also rationalising the misuse of power by the Government, all the while increasing the demand for lawyers unduly.

I like to believe that if you add one word to a legal texts you will have in practice had added at least two... things should be kept simple.

Why'd they change their minds in regards to this?
Question is if they did. I think they just transmuted. The social-justice lawyers have the same kind of politicized mentality, except under a more insufferable facade. But to answer your question: because the facade of "natural law" was expedient, and because it is nice to have power and pretend to be a modern kind of democratically unelected modern equivalent of the medieval clergy.

If you're less cynical than I am you could point to Sweden's accession to the EU. There has in fact been some real consequences to that, not all negative either...
 
Jun 2017
2,976
Connecticut
Here in the US, we have had a lively debate about originalism versus living constitutionalism over the last 40+ years. (This debate began before 1991 and thus this should hopefully make it an acceptable topic of discussion for this forum.) Basically, originalism means that judges should interpret laws and constitutions based on the original intent of the people who wrote these laws and constitutions--or, according to later originalism, based on the original understanding or the original meaning of these laws and constitutions. (There has developed a debate among originalists about whether the original intent, original understanding, or original meaning should be decisive--especially in cases where different approaches result in different outcomes.) In contrast, living constitutionalists argue that we don't have to follow the original intent and/or original understanding and/or original meaning of a law or constitution. Rather, we could interpret this law or constitution in such a way that it takes into account present-day needs and realities--as well as what present-day observers consider to be desirable outcomes.

Here is an article (originally written in 1980, I believe) about the debate in regards to originalism versus living constitutionalism that has occurred up to that point in time:

RAOUL BERGER AND THE DEBATE OVER

Also, here is a Wikipedia article that I wrote about the 1977 book Government by Judiciary--specifically a book by constitutional scholar Raoul Berger where he advocated in favor of using original intent to interpret US constitutional provisions and especially the 14th Amendment:

Government by Judiciary - Wikipedia

Anyway, what are your own thoughts on this debate (whether in regards to the US or in regards to your own country and its laws and constitution) and which side would you have taken in this debate?
Built in flaw with a common law system if you wanted a clear law to follow should have went with the Napoleonic Code. On one hand the system clearly wasn't intended to be interpreted strictly based on words if it were we'd have a civil system. On the other hand that is used as leeway to modernize the system through situations that the constitution couldn't have foreseen.

Orginalism makes no sense though and is just the more unworkable position, everyone even the conservative originalists is to some degree a living constitutionalist in all but label because Originalism simply can't work practically because the Constitution is written vague and interpretation is needed.
 

Futurist

Ad Honoris
May 2014
22,461
SoCal
Built in flaw with a common law system if you wanted a clear law to follow should have went with the Napoleonic Code. On one hand the system clearly wasn't intended to be interpreted strictly based on words if it were we'd have a civil system. On the other hand that is used as leeway to modernize the system through situations that the constitution couldn't have foreseen.

Orginalism makes no sense though and is just the more unworkable position, everyone even the conservative originalists is to some degree a living constitutionalist in all but label because Originalism simply can't work practically because the Constitution is written vague and interpretation is needed.
OK, I'll bite--let's say that the original US Constitution (as in, the 1787 text) would have explicitly stated that US states are allowed to segregate their schools by race and to have anti-miscegenation laws (with whatever penalty for miscegenation that they wanted, including the death penalty). Also, let's say that the draftsmen of the 14th Amendment in this scenario would have explicitly said that nothing in this Amendment affects these provisions in the original US Constitution in any way. In such a scenario, could we nevertheless use the 14th Amendment's broad principles (no second-class citizenship, et cetera) to strike down these explicit (hypothetical) provisions of the original US Constitution?
 
Jun 2017
2,976
Connecticut
OK, I'll bite--let's say that the original US Constitution (as in, the 1787 text) would have explicitly stated that US states are allowed to segregate their schools by race and to have anti-miscegenation laws (with whatever penalty for miscegenation that they wanted, including the death penalty). Also, let's say that the draftsmen of the 14th Amendment in this scenario would have explicitly said that nothing in this Amendment affects these provisions in the original US Constitution in any way. In such a scenario, could we nevertheless use the 14th Amendment's broad principles (no second-class citizenship, et cetera) to strike down these explicit (hypothetical) provisions of the original US Constitution?
Well no. I hope then we'd have overthrown the Constitution by then. Remember though that text wouldn't be there in 1787, because it was pre segregation, the South wouldn't have pushed for language like that pre the end of the Civil War.
 

Futurist

Ad Honoris
May 2014
22,461
SoCal
Well no. I hope then we'd have overthrown the Constitution by then. Remember though that text wouldn't be there in 1787, because it was pre segregation, the South wouldn't have pushed for language like that pre the end of the Civil War.
The South (and not only the South) already had anti-miscegenation laws in 1787, if I recall correctly. I believe that the first anti-miscegenation laws in what is now the US were passed in the 1600s.